A good / depressing summary of how UK politics has failed to surmount the legal realities of Brexit over the past 4 years.
Twitter thread, just the text
If you only follow Brexit from a legal - or legalistic - perspective you will miss many things. For example, the mad decision to trigger Article 50 with neither thought nor preparation can can only be understood in terms of politics. But if you understand Brexit only in terms of politics you will miss perhaps a great deal more.
Here, in broadly chronological order, are aspects of Brexit where an understanding of law is helpful.
At the very beginning of the process - the "re-negotiation"
Breathless pundits and their sources presented this as a failure of political will and tactics. Cameron did not try hard enough. But: the EU went as far as it could without treaty changes.
The referendum
Until the vote, few if any on the Leave side had realised that the vote had no legally binding effect. Few, at that time, realised Article 50 was a distinct step.
Theresa May’s conference speech, 2016
When May blithely declared her red lines and unrealistic timetable, there was clapping and cheering from Brexiter pundits and politicians. They did not realise the frustrating knock-on effects for the upcoming negotiation of a legal text.
The run-up to notification
By the end of 2016, the EU27 negotiating team was in place, with draft guidelines for the upcoming negotiation. In contrast, UK’s daft decision to start a new government department from scratch meant not even basic work had been done. Amateur hour.
By start of 2017, EU27 was ready at any point to get EU27 sign-off on binding legal guidelines for its negotiation mandate. May and Davis refused parliament any role - “keeping cards close to chest” - which just created big problems down road when deal emerged.
EU27 presented a suite of formal documents to substantiate each of its negotiating objectives for the deal text. UK had banal political speeches, a flimsy last-minute white paper, and playing to the gallery. Davis thought he could wing it, and the lobby and MPs nodded along.
Sequencing
Control of the agenda meant control of how the legal text developed. UK just had bombast and boasted of winning the “row of the summer”. In fact, UK folded in less than a week
Negotiation
Brexiters believed (and believe) it is all a test of will and shouting louder - that the EU27 just need to be told firmly what UK wants (just like the re-negotiation). A lack of seriousness about negotiating a legal text undermined UK throughout. Lack of trust.
The Brexiter playing to the domestic gallery meant that EU27 sought to pin-down UK first with the joint report and then with the backstop. Both through lack of trust that UK would comply with obligations. Both self-inflicted by UK untrustworthiness.
Article 50 period
The notification was treated like a press release, a test of political virility. UK wasted time once triggered with needless general election. But Article 50 imposed a hard looming deadline, which UK government only realised at late stage.
End game
For EU27, the negotiated legal text was end of a process started in 2016, from objectives to final legal text. But for UK, it was start of process because government had kept parliament out of the process. Brexiters thought EU27 were still open to pressure. Too late.
Prorogation
Johnson and Cummings thought they could blag their way to a five week shut-down of parliament. Their supporters clapped and cheered. But they could not find anyone to sign a witness statement under pain of perjury. And so they lost in court.
Benn Act
And now, Brexiter pundits and politicians clap and cheer about possible ways to avoid the Benn Act, even though in formal promises to the Scottish court, the government has surrendered to the Surrender Act. The lack of legal realism continues even now
This thread could have dozens of more examples. At each stage of the process, the belief that things were just a matter of political will have been confounded by legal reality. And still Brexiters put their heads down and charge at the walls, and get clapped and cheered on.
None of this to say is that law explains everything, or indeed many things, about Brexit. And there are things legal commentators have got wrong - am first to admit. But the failure to take law seriously explains a good deal why this attempt at Brexit was so botched.
The sad thing, nothing has been learned. Every set-back just makes Brexiters shoutier about political will. And then they wonder why they keep on being frustrated.
But at least they cannot say they were not warned
